Opinion
No. CV 03-0102952
January 14, 2004
MEMORANDUM OF DECISION ON APPLICATION FOR PREJUDGMENT REMEDY
In this action the plaintiff seeks to recover damages for breach of lease. On May 19, 2000 the plaintiff, Linda Zemmel, as landlord, and the defendant, SSHC, Inc., as tenant, entered into a commercial lease for the property known as 2 Custom Drive, Old Saybrook, Connecticut for a term of five years commencing July 1, 2000 (the "Lease"). The defendant, Richard Watson executed a limited personal guarantee in connection with the Lease under the terms of which he would be personally liable for an amount not to exceed six months rent, taxes, insurance and other expense due from the tenant under the Lease.
The Lease was a "triple net" lease and as such the defendant/tenant was obligated to pay: (i) real estate taxes, (ii) insurance, (iii) repairs and maintenance, and (iv) utilities. On September 2, 2003 the plaintiff caused a Notice to Quit to be served on the defendant, SSHC, Inc. for its failure to pay rent for the months of July and August 2003 as required under the Lease. On September 30, 2003, the defendant's counsel advised the plaintiff that the defendant had vacated the leased premises.
Subsequent to the issuance of the Notice to Quit, the defendant paid the rent due for the months of July, August and September 2003 and thereafter, reimbursed the plaintiff for the real estate taxes due in July 2003.
The defendants have not paid any rent to the plaintiff after September 2003. The plaintiff seeks to recover for the defendants' breach of the Lease and requests an attachment in the amount of $130,000.
Discussion of the Law and Ruling
The court may grant a prejudgment remedy where the plaintiff establishes probable cause to believe that a judgment will be rendered in her favor in a trial on the merits. Hoke, Inc. v. Circuits, Inc., 26 Conn. App. 804, 602 A.2d 1075 (1992). The defendants argue that they owe nothing under the Lease, because by serving a Notice to Quit, the plaintiff elected to terminate the Lease. Such an argument has been considered and rejected:
When the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender. Sagamore Corporation v. Willcutt, 120 Conn. 315, 317-18, 180 A. 464 (1935); Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985). Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages. Dewart Building Partnership v. Union Trust Co., supra.
When the landlord elects to terminate the tenancy, however, the action is one for breach of contract; Sagamore Corporation v. Willcutt, supra; and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. Dewart Building Partnership v. Union Trust Co., supra. When the tenancy ends, the tenant is released from his obligations under the lease and is, therefore, no longer obliged to pay rent. Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959).
The defendant relies on Feneck v. Nowakowski, supra, for the proposition that because the plaintiff opted to terminate the tenancy, his obligation to pay rent was discharged and, therefore, he cannot be liable to pay rent due after the judgment of possession was rendered. The defendant's reliance on Feneck is misplaced. Although the termination of the tenancy releases a tenant from his obligations under the lease, such release does not leave the landlord without legal recourse to recover damages. Where a landlord, as in this case, elects to terminate the tenancy and to regain possession of the premises, although he cannot institute an action for rent due under the lease, he may sue for a breach of the lease. Where the action is one for breach of the lease, basic contract principles apply.
As the trial court correctly concluded: "A lease is nothing more than a contract. Robinson v. Weitz, 171 Conn. 545, 551, ( 370 A.2d 1066 (1976)]. Thus, as in any other contract action the measure of damages is that the award should place the injured party in the same position as he would have been in had the contract been fully performed. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 404-05, ( 365 A.2d 1086 (1976)]. As a consequence, the unpaid rent, while not recoverable as such, may be used by the court in computing the losses suffered by the plaintiff by reason of the defendant's breach of contract of lease. The plaintiff would be entitled to recover the damages which would naturally follow from such a breach. Sagamore Corporation v. Willcutt, [ supra, 320]." See also Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 445-46, 438 A.2d 708 (1980); 49 Am.Jur.2d, Landlord and Tenant 183.
Rokalor v. Connecticut Eating Enterprises, 18 Conn. App. 384, 388-89, 558 A.2d 265 (1989).
Under Rokalor and the cases cited therein, the plaintiff may recover amounts due under a commercial lease as damages where the defendant has breached the lease by failing to timely pay rent. The court finds that the defendant SSHC, Inc. did breach the Lease and there is probable cause to believe that the plaintiff will recover as damages the rental amounts due under the Lease for the months of October 2003 through July 2005, for a total amount of $124,166. The plaintiff will also incur expenses for insurance, real estate taxes, utilities, maintenance and repairs. The yearly amount owed for insurance is approximately $4000. Therefore, the court finds probable cause that the plaintiff will recover from the defendant SSHC, Inc. in an amount of at least $130,000. Therefore, a prejudgment remedy may issue in the amount of $130,000 as to the defendant SSHC, Inc.
Liability of the defendant Richard D. Watson is limited to six months of rent and other expenses. The rent due under the lease from August 1, 2004 through July 30, 2005 is $5,833 per month. Six months of rent is equal to $34,998 and other expenses for that period are estimated to be approximately $5000. Therefore, a prejudgment remedy may issue as to Richard D Watson in the amount of $40,000.
By the Court,
AURIGEMMA, JUDGE.